Intellectual Property in Commercial Settings
A trade mark registration is granted for marks that are in use or are intended to be used in the future in relation to particular goods or services. Trade mark law does not aim to grant protection to marks that are no longer in use or where an applicant has no intention of using the mark in the registered class of goods or services.
A registered mark is liable for cancellation if there is sufficient evidence to show the mark is no longer in use or the owner has no intention of using it in relation to the registered goods or services. The burden to prove that a mark is liable for cancellation is on the person who files an application for cancellation of the mark. If a mark is successfully cancelled, it is available to be used and registered by another person or entity in relation to their own goods or services.
A registered mark may also be cancelled if it is no longer capable of distinguishing the relevant goods or services. This may happen when the word moves from being used as a trade mark (to indicate the commercial source of the goods) to being used as a generic descriptor of the type of goods. This process is known as genericide.
The Otis Elevator Company once had a trade mark over ESCALATOR for moving staircases, though they lost that trade mark once the term became a generic descriptor. Similarly, Johnson & Johnson still has a trade mark over BAND-AID for ‘adhesive pads for wounds, cuts and sores’ (Class 5), though many argue that the term has now become generic.
What trade marks have become part of your everyday language?